Dossier 17: Stretching The Limits: A Feminist Reading of the Shari’a in Post-Khomeini Iran

Women’s issues are now an integral
part of modern Islamic discourses, as evidenced in the plethora of ‘Women in
Islam’ titles in religious publishing projects all over the Muslim world.[1] In practice, this
has entailed re-readings of the old texts in search of solutions - or more
precisely, Islamic alternatives - for a very modern problem, which has to do
with the changed status of women and the need to accommodate their aspirations
for equality and to define and control their increasing participation in the
politics of the Muslim world. Despite their variety and diverse cultural
origins, what these re-readings have in common is an oppositional stance and a
defensive or apologetic tone. Oppositional, because their agenda is to resist
the advance of ‘Western’ values and lifestyles which were espoused by states and
adopted by secular elites earlier this century. Apologetic, because they are
attempting to explain the gender biases which are inadvertently revealed by
going back to the Shari’a texts.

A question that arises is
whether these solutions can be ‘feminist’, in the sense of representing women’s
perspectives as well as redressing their oppression at work, in the home, and in
society. In other words, to what extent and by what means can limitations
imposed on women by Shari’a texts be renegotiated? In this paper I argue that a
‘feminist’ re-reading of the Shari’a is possible - even becomes inevitable -
when Islam is no longer part of the oppositional discourse in national politics.
This is so because once the custodians of the Shari’a are in power, they have to
deal with the contradictory aims set by their own agenda and discourse, which
are to uphold the family and restore women to their ‘true and high’ status in
Islam, and at the same time to uphold men’s Shari’a prerogatives. The resulting
tension - which is an inherent element in the practice of the Shari’a itself,
but is intensified by its identification with a modern state - opens room for
novel interpretations of the Shari’a rules on a scale that has no precedent in
the history of Islamic law.[2]

Iran is a case in point. Now
fifteen years into an Islamic Republic, there are clear signs of the emergence
of a feminist re-reading of the Shari’a texts. This is manifest in two opposing
currents. The first reflects the official Shi’a discourse adopted by the Islamic
Republic, and is most evident in the 1992 Divorce Amendments. These amendments
represent a radical, and if you like feminist, interpretation of Shari’a divorce
provisions. They not only curtail men’s right to repudiation, talaq, but place a
monetary value on women’s housework and entitle them to ujrat al-mithl,
‘domestic wages,’ for the work they have done during marriage. The second
current reflects the recent non-establishment Shi’a discourse and is most
manifest in legal articles published in Zanan, a women’s magazine launched in
February 1992. These put forward a novel interpretation of Shari’a provisions on
women; they neither cover up nor rationalize the gender inequalities that are
embedded in many aspects of the Shari’a, but propose to recast them within the
limits of the Shari’a. Both currents, in their different ways, can pave the way
for an unprecedented reinterpretation of the Shari’a rules which is indeed
gender sensitive, if not ‘feminist’ in the Western sense.

By tracing the evolution of
the Shari’a-based discourses in Iran, I aim to show how and why such ‘feminist’
re-readings of the old texts have come about. The paper is divided into two main
parts. The first part is an attempt to place the contemporary Shi’a discourses,
as they emerged in the last decades before the revolution, in their proper
context. Such contextualization is in order because they continue to be read in
an essentialist and anachronistic way. The second part first explores their
impact on other post-revolutionary discourses on women and then examines the
emergence of a ‘feminist’ discourse as articulated in legal sections of
Zanan.

Pre-revolutionary Shari’a
Discourses on Women

With the establishment of
an Islamic Republic in Iran came a wave of popular and scholarly Western
publications on Shi’ism. Two topics have predominated: Shi’ism as a religion of
protest, and Shi’a attitudes to women. While the first is a scholarly response
to the Revolution,[3]which caught
students of Islam and Iran by surprise, the second is motivated by a feminist
concern to safeguard women’s rights in an Islamic Republic.[4] Two events early
in the revolution validated such a concern. The first was the dismantling of the
Family Protection Law, which had come into effect in 1967 and had restricted
polygamy and made divorce easier for women; and the second was the imposition of
Islamic dress (coat and head-scarf).

It was in such a climate
that a large portion of the literature on Shi’a attitude to women was produced.
Attention was focused on two writers, Dr ‘Ali Shari’ati and Ayatollah Mortaza
Motahhari: they were not only the most prominent contemporary Islamic thinkers
(in Iran) whose writings dealt with women’s issues, but both men were dead,
which gave their views an aura of immutability. Their writings soon came to
shape the contours of the contemporary Shi’a discourses on women, in short, they
became ‘texts’. In this way not only were they decontextualized but they were
read and examined anachronistically, that is in the light of events in the early
years of the Revolution. In focusing on their gender assumptions, the literature
on both texts tends to trivialize the specific circumstances which gave rise to
each.[5]

In what follows my aim is not to
offer a critique of this literature, nor of the two texts themselves, rather it
is to describe the circumstances in which the texts were produced. First it
should be noted that both texts were written in the context of gender debates
and legal reforms of the late Pahlavi era.

‘Ali
Shari’ati’s text: Fatima is Fatima

‘Ali Shari’ati was a lay
Islamic thinker who enjoyed enormous popularity in the Iran of the 1970s. He
came from a clerical family, read sociology at the University of Paris and
became a vocal critic of the Pahlavis. Upon his return to Iran in 1964, he was
imprisoned for his anti-regime activities but he was released after six months
and became Professor of Sociology in Mashhad University. However, he was soon
dismissed and continued to be persecuted. In 1977, shortly after his latest
release, he died in England where he had gone for medical treatment. His ideas
formed the intellectual backbone of a modern Shi’a opposition to the Pahlavi
regime and its blind Westernization. He used his public lectures in the
Hosseinieh Ershad, a celebrated religious institution, to air his views.[6]

His seminal text on women has its
origin in one of these lectures, delivered in April 1971. The text of this
lecture was later published in an extended form as Fatemeh Fatemeh ast (Fatima
is Fatima), which came to be regarded as an Islamist treatise on women, though
it can best be read as a critique of Iranian society and its values in the early
1970s, rather than a treatise on women in Islam. Its rhetorical style and
revolutionary tone arouse emotions without ever entering on any kind of serious
examination of women in the Shari’a. In fact its preface reveals the extent to
which Shari’ati improvised during the lecture.

“I first wanted to talk
about Professor Louis Massignon’s research on the complex life of Fatima,
especially its impact on Muslim societies... But when I entered the room and saw
many others in addition to my own students, I realized that the gathering called
for a more urgent topic. So I decided to provide an answer to this ‘destined
question’ which today intensely occupies our society. Women who endure their
traditional mold have no problem, and women who accept their new imported mold
have the problem solved for them. In between these two types of ‘molded’ women,
there are those women who can neither tolerate the inherited mold nor can
surrender to the imposed new one; what should they do? These women want to
choose for themselves, want to ‘make’ themselves; they need a ‘model’, an ‘ideal
type’. For them the question is ‘how to become’. Fatima by ‘being’ herself is
the answer to this question.”[7]

The text, which could be divided
into two parts, sets out to answer this question. In the first part (pp 1-90),
Shari’ati defines the ‘women’s question’ and the dilemmas that Muslim women are
facing in this century. He is critical of both those Muslim women who
unquestioningly accept their ‘traditional’ role, and those modern, westernized
women who, by aping the West, are becoming mindless consumers. He sees the latter as a new
addition to the human species: a creature who shops,[8]for which he blames
the colonial policies of the West. Having understood women’s pivotal role in
maintaining the fabric of Islamic societies, the West set out to alienate them
from Islam so that Muslims could be dominated. But Muslim men and the
narrow-minded clergy, who continued to misrepresent Islam, are equally to blame:
they also conspired to deny Muslim women their truly Islamic rights. By being
denied their humanity, educated women were left with little option but to look
to the West for an alternative.

In the second part (pp
91-189), Shari’ati discusses the solution, which is to be found in the person of
Fatima, the Prophet’s daughter, ‘Ali’s wife, and mother of Hassan and Hossein.
The picture that he draws of Fatima’s life is romanticized but rather gloomy.
More than offering a clear and tangible model to be emulated, it epitomizes the
Shi’a ideal of silent suffering and covert defiance. As he has it, Fatima died
of grief at the injustice that followed her father’s death, in which ‘Ali was
denied his right to the Caliphate, at having her inherited land (fadak) taken
away from her, and at the failure of her attempts to enlist support for ‘Ali’s
claim.

The text
ends without providing a coherent answer to the crucial question that Shari’ati
considered was facing Iranian women of the 1970s. In fact the question is often
by-passed; out of 189 pages, less than ten deal directly with the question of
women in Islam. Even in these pages Shari’ati neither elaborates on women’s
position in the Shari’a, nor does he engage with the proponents of the Shari’a
discourse on women. Instead he uses the occasion to elaborate on his own
interpretation of Shi’a history, to condemn those in power for distorting it, to
denounce Iranian society as one of pseudo-Muslims, whose ways have little
resemblance to true Islam, to blame the clergy and intellectuals alike for not
enlightening people on true Islam. Although he is critical of narrow
interpretations of Koranic rules, he remains imprecise and evasive. On the other
hand, he is both explicit and direct when he criticizes the secularizing
policies of the Pahlavis. In short, what he had to say on ‘women in Islam’ was
vague, contradictory and at best inconclusive. He did not offer a concrete
solution but a romanticized revolutionary vision, which was soon eclipsed with
the establishment of the Islamic Republic.

Mortaza
Motahhari’s text: The System of Women’s Rights in Islam

The thinker whose writings
on women survived into the post revolutionary era, and became identified with
the view of the Islamic Republic, was a clergyman, Ayatollah Mortaza Motahhari.
Motahhari was both a theologian and an academic, teaching both at religious
schools in Qom and at secular universities in Tehran. He became a member of the
Revolutionary Council in February 1979, but was assassinated in May of that
year. Motahhari was one of the few Shi’a clergy to have written lucidly and
extensively on the issue of women’s rights in Islam, and the only one who has
entered a debate with secular thinkers on the issue.

The debate, which was
conducted in a glossy women’s magazine, Zane Ruz, was predicted on the enactment
of the Family Protection Law in 1967, which introduced radical changes in
divorce provisions. In 1966 Zane Ruz was airing the views of those who were
arguing for changing the family provisions of the Iranian Civil Code, which
reflected the dominant opinions within Shi’a fiqh. The most prominent among the
reformers was a secular judge, Mahdavi Zanjani, who had prepared a 40-article
proposal to replace some of the articles of Book Seven of the Code, which deals
with marriage and divorce. This had alarmed the religious authorities, and
Motahhari was approached by a leading Tehran clergyman to prepare a response in
defense of the code. Motahhari agreed to do so, provided that his replies were
printed intact. His condition was accepted and Zan-e Ruz, as a good-will
gesture, even printed his original letter which contained his proviso.
Motahhari’s first reply appeared in November 1966 as a direct response to the
first of the 40 articles proposed by Judge Mahdavi. Although the sudden death of
Mahdavi meant that the debate ended after six issues, Motahhari continued his
discussion, which by then had attracted a large readership, for another 27
issues. In 1974, he compiled these articles into a book, The System of Women’s
Rights in Islam.[9]

The book is divided into 15
sections, each dealing with a cluster of rights and obligations arising from
marriage. It starts with marriage proposal and engagement, the subject-matter of
the first articles of Book Seven of the Civil Code, which was also the
starting-point of Judge Mahdavi’s 40-article proposal. In the following
chapters, Motahhari deals with temporary marriage, women and social
independence, Islam and modernity, women’s human status according to the Koran,
the natural basis of family laws, differences between men and women, mahr and
maintenance, the question of inheritance, the right to divorce, and polygyny. In
each section, Motahhari is selective in choosing his facts and sources,
especially when he invokes western scholarship to justify the necessity for the
different treatment of women in Islam.

Evidently, Motahhari’s text
cannot be separated from the debates and legal reforms of the Pahlavi era; it
was written to offset the harsh criticisms of the Shari’a position on women,
embodied in Book Seven of the Iranian Civil Code. To defend the Shari’a,
Motahhari not only painted a rosy picture of its treatment of women but
glorified gender inequality by arguing that it is in harmony with the law of
nature. He dismissed equal rights for men and women as a Western concept and
alien to the Islamic world-view. He argued that, if properly understood, the
Shari’a laws are the very essence of divine justice, as they embody God’s design
for men, women and society. While the admitted injustices done in the name of
the Shari’a - the plight of divorced and abandoned women was widely highlighted
by Zan-e Ruz - he blamed this state of affairs on un-Islamic society and men
who abandoned Islam. In so doing, he not only detached the Shari’a from social
reality but also left little room for debate and changes in line with the
demands of the time.

Post-Revolutionary
Discourses

With the triumph of the
Islamists early in the Revolution, Shari’ati’s text with its idealistic and
vaguely reformist vision soon faded into obscurity, while Motahhari’s text with
its legalistic approach became the Islamic Republic’s official discourse on
women. In 1981, his book was translated into English, and by 1989 it had been
reprinted in Persian over 15 times. His arguments are the most eloquent and
refined among those which hold the concept of gender equality to be contrary to
Shari’a. They were successfully invoked to stifle any opposition to the
dismantling of the Family Protection Law in the early years of the Revolution,
and later to validate the gender policies of the Islamic Republic.[10]

For over a decade, Motahhari’s text
remained uncontested, at least at the public and official level. The larger part
of the vast post-revolutionary literature, especially that produced by the
Islamic Propaganda Organization, not only embodies his position but simply
reproduces his arguments verbatim. However, this hegemony is now losing ground
to a different discourse which, although located in the Shari’a, argues for
gender equality in all fronts.

The new discourse combines
the legalistic style and tone of Motahhari with Shari’ati’s egalitarian vision,
but it differs from them both in two fundamental ways. First, it no longer
defines itself in opposition to the West, but in opposition to patriarchal
interpretations of the Shari’a. Secondly, it challenges the hegemony of the
orthodox interpretative process, paving the way for tackling the ‘women’s
question’ from an entirely novel perspective within the fiqh.

As far as context and
medium of expression are concerned, there are two striking parallels between
this discourse and that developed by Motahhari. Both were grounded in debates
generated by state initiatives in changing the divorce laws; and in both cases a
women’s magazine became the forum for their articulation and development. Let me
elaborate.

In
December 1992, more than a decade after dismantling the Family Protection Law
(FPL), which curtailed men’s right to divorce and polygamy, the Majlis
(Parliament) ratified a law with similar goals. The new law, entitled Amendments
to Divorce Law, outlaws registration of all divorces without a court certificate
called Impossibility of Reconciliation - incidentally the same name as that
required by FPL. A divorce can now be effected and registered only when the
husband pays his wife, in cash, all her dues (mahr, past nafaqa and maintenance
‘iddat) unless it is of khul’ type, i.e. when she foregoes all her dues in
return for her release. These amendments also require that every divorcing
couple go through the process of arbitration; and allow the appointment of women
judges as advisers to the main judge. More importantly, they enable the court to
place a monetary value on women’s housework and entitle her to ujrat al mithl
(literally wages in kind) for the work she has done during marriage, provided
that divorce is not initiated by her or is not caused by any fault of hers. All
these amount not only to the resurrection of the rejected provisions of the
pre-revolutionary law of divorce, but to taking them a step further - in short a
complete U-turn.

But this U-turn proved to
be neither smooth nor complete. It caused a rift between two of the highest
law-making bodies. The first draft of these amendments passed by Majlis in March
1991 was twice rejected by the Council of Guardians, whose task is to ensure
that all laws passed are in line with the Shari’a. The Council objected to the
concept of ujrat almithl, as formulated by the Majlis. The dispute between these
two bodies was not resolved until November 1992, and then only through the
intervention of the highest constitutional authority.[11] In December 1992,
the new law came into effect, but it soon became evident that, rather than
protecting women against an undesired divorce, by requiring all cases to go
through arbitration they are creating problems not only for the court but for
those couples who have reached mutual consent.[12]

All this suggests that
debates over women’s position in law, which were so harshly stifled early in the
Revolution, are resurfacing. Interestingly, they centre on divorce provisions,
as these have once again come to embody the essence of the injustices to which
women are subjected in law. But this time, debates are conducted in an Islamic
Republic, whose claim to uphold the Shari’a makes it directly responsible for
such injustices. It is in this context that the journal Zanan makes its first
appearance, opening a new chapter in an old debate. The magazine itself is the
fruit of the Revolution, an outgrowth of ‘Islam is power’ for over a decade. Its
editor and founder, Shahla Sherkat, was among those who helped to Islamize Zan-e
Ruz, the glossy pre-revolutionary women’s magazine which featured Motahhari’s
articles in the 1960s. She was invited to join Zan-e Ruz in 1982 and remained
its chief editor until 1991, when she was dismissed because of unresolved
disagreements over the ways in which gender issues were being addressed. Seven
months later, in February 1992, the first Number of Zanan appeared, coinciding
with the 13th anniversary of the revolution. Referring to a decade of fighting
against the centuries-old oppression of women in Iran, and hinting at obstacles
faced, Sherkat writes:

“We believe that the key to
the solution of women’s problems lies in four realms: religion, culture, law and
education. If the way is paved in these four principal domains then we can be
hopeful of women’s development and society’s advancement.”[13]

At the end of Autumn 1994, 19
Numbers of Zanan have appeared. With a few exceptions, every issue contains
articles classified under ‘Law/Rights’ (hoquq), where aspects of gender
inequality in the Shari’a are discussed and new interpretations are attempted.
So far, the following three themes have been addressed: women in family law
(Zanan 1, 2, 9, 18, 19); women as judges, arbitrators, and mojtaheds (Zanan 4,
5, 6, 7, 8, 17); women in penal law (qissas) (Zanan 11, 13, 14, 15,
16).

It is in
these articles that one can find the contours of a different Shi’a discourse. In
what follows I attempt to convey something of the evolution of ideas and
interpretations of the sacred texts in these articles, especially the ways in
which Zanan manages to reinterpret them to accommodate women’s aspiration for
equality and to introduce notions such as the legitimacy of women’s choices and
their demands for equal treatment at home and in
society.

The Beginning: a Hesitant Voice

Legal sections of the first
three Numbers, written by lay women, are similar to Shari’ati’s writings, where
the mode of argumentation is more sociological than legal. Like him, the authors
shy away from engaging with fiqh sources, instead they focus on Civil Code
provisions and hold them responsible for making women subordinate in marriage.
In support of their position, which is that of partnership in marriage, they
resort to the Koran and appeal to its patent message of equality and justice.
The end result is that the authors do not challenge on their own grounds fiqh
concepts such as tamkin (women’s duty to submit to her husband’s will) and
nushuz (her refusal to submit, rebellion), which legitimate women’s
subordination in marriage, but instead they add two qualifiers. First, tamkin as
it is interpreted by the Civil Code is faulty, “in a mutual human relationship,
shaped by modes and characters of those involved, one cannot consider the woman
as a (sexual) object ready to be manipulated and used.” Secondly, tamkin and
nushuz must be reciprocal, that is it is necessary to take into consideration
women’s sexual needs and to subject men’s defiance of their duties to legal
sanctions.

To
illustrate the tone and mode of argumentation in these articles, let us take a
closer look at two of them, representing Zanan’s earlier stance. The first
article, co-authored by Shokufeh Shekari and Sahereh Labriz, is entitled
“Tamkin” and opens with the text of Article 1105 of the Civil Code, stating:
headship of the family is among men’s attributes (khasa’es). The authors note
that this article raises a number of critical questions for women in our
society. For instance, “According to what logic and on what grounds is the man
head of the family? Does such a headship imply his absolute rule? Does the
mandate of tamkin in conjugal life equally apply to men? If not, why not? Should
woman be beaten, if she is unwilling or is not ready - psychologically and
physically - to fulfil her husband’s (sexual) wishes?”

In search of answers, the
authors go through a wide body of legal opinions in Shi’a fiqh and in legal
textbooks in which Civil Code articles are expounded on. Although overtly
critical of the Code, they remain hesitant to challenge its gender premise and
other assumptions which are all derived from the Shi’a fiqh. Instead they tend
to reinterpret them in a more liberal light, to play them against each other, or
against other articles of the Civil Code. For instance, as regards men’s
headship, they write:

“this headship does not
imply that a man has an absolute and despotic rule in the family according to
which the wife is required to slavishly follow him; but it entails a certain
authority defined by law and custom. A woman is not her husband’s mere
subordinate but his partner, companion and aide.”

Likewise, as regards
tamkin, the authors cite a passage from Ayatollah Khomeini’s treatise in which
tamkin is limited to a woman’s submission to her husband’s sexual demands. To
this the authors add a modifier: “the emphasis placed on meeting the husband’s
sexual demands should not be taken as his wife’s ever-readiness for sexual
intercourse.” Without questioning the prime assumption of the passage, which, in
line with the fiqh position, sees sexual submission as a woman’s duty in
marriage, they make two deductions from it. First, in the non-sexual aspects of
marital duties - which they term ‘ordinary duties’ - a woman is not required to
obey her husband and can even demand wages for what she does in the house.
Secondly, whereas in fiqh, nushuz (rebellion, non-fulfilment of marital duties)
pertains to the conduct of both spouses in marriage, in the Civil Code, it
merely pertains to the wife’s. When a man neglects his marital duties, there is
no legal recourse open to his wife apart from asking for a divorce. “Such a
solution is not befitting of an Islamic state, given the degree to which Islam
abhors divorce. “[14]

The second article, entitled “Man,
Partner or Boss?”, places the question of headship and power relations in the
family in an evolutionary framework. Drawing on anthropological theories of the
evolution of societies from matriarchy to patriarchy, the authors note that “in
the Islamic world view we encounter a new anthropology and a fresh perspective
in which men and women are declared equal before God, and that they are created
from the same substance in order to console, to complete and to fulfil each
other.” Referring to Verse 13 of Sura Hujurat (see below), they contend that
“this verse on its own suffices to convince us that, despite other existing
evidence, Islam is not a sexist and racist school of thought.”

This becomes a prelude to
defying the conventional understanding of other verses, notably Verse 34 of Sura
Nisa (see below), which the authors believe is mistakenly invoked to perpetuate
the belief that “in essence, in attributes and in conception, men are superior
to women; this is so deep-rooted that even some women came to believe that they
are defective, naqis.” The reader is reminded that such beliefs have little to
do with Islam but are products of historical processes that not only pre-date
Islam but gained momentum after the Prophet’s death due to socio-political
realities of the time. Today there are other realities: women are now highly
educated and skilled, they actively participate in society at large
- even take part in
wars. There is now more than ever an acute need to redefine their Shari’a
rights. The authors end their discussion by demanding total equality in
marriage: “in our view, in a healthy relationship there is no need to have a
superordinate and subordinate;” and “in many cases women are more to be trusted
which the headship of the family.”[15]

Gaining
Legitimacy: a Fiqh Voice

With Zanan 4, not only is
there a discernible shift in tone, style and mode of argumentation but the focus
changes from gender biases in the Civil Code to those introduced soon after the
revolution. Articles in five consecutive Numbers, which appeared between May and
December 1992, discuss the question of women’s right to serve as judges and
arbiters in marital disputes in courts, and as mojtahids. Interestingly - but
perhaps not unexpectedly - the author of these five articles is a male cleric in
Qom using a female pseudonym, Mina Yadegar Azadi. He takes issue with the very
premise on which the official Shi’a discourse on the position of women is based,
laying bare its inherent gender bias. His mastery of the Shari’a art of
argumentation, coupled with his command of the sacred sources, not only ensures
that the debate remains within acceptable boundaries but gives a different edge
to these arguments.

To appreciate the nuances
of these arguments, we should take a closer look at the mode of argumentation,
the juristic and logical devices the writer employs to obtain different
interpretations of those Koranic verses on which Shari’a rules on women are
based. Two of these articles, entitled “Women in Judgment” (Zanan 4 & 5),
discuss the sensitive issue of forbidding women since 1979 to serve as judges on
the grounds that it is against the explicit rule of Shari’a. The author says
that those who see women as unfit to serve as judges resort to two kinds of
reasoning. The first is that women have delicate constitutions, are ruled by
emotions, and are, thus, unable to deliver justice. The second is that Islam
forbids them to do so, and “in support of this assertion they invoke the Koran,
sunna, practice of the Prophet; ijma’, consensus of the jurists; and ‘aql,
reason”. It is those who use the latter argument that the author considers it
more important to tackle first, especially since some of them are opposed to
women’s work outside the home. They ground their arguments in three Koranic
verses (4 (Nisa): 34, 2 (Baqara): 228, and 59 (Ahzab): 33); and so the writer
commences by discussing these. [16]

He opens the discussion by
interpreting the first part of verse 34 of Sura Nisa as follows:[17]

“According to God’s way, sunnat, which has caused some to excel over others, men, because they give from their
own property, have an advantage over women, thus honourable and respectful women
guard their husband’s interest covertly, as this right has been reserved for
them [men] by God.”

He then adds that those who
oppose women serving as judges say that:

“according to this verse,
men have dominion over women and God has made men maintainers of women; thus how
can women judge men and decide their fate? Whereas this verse as translated does
not indicate that men are superior to women, it merely recalls the place of
married men and women and reveals an external fact; and discusses the status of
men in conjugal life. Beside, this verse does not embrace single or widowed men
and women.”

In
order to confine men’s supremacy to the realm of the family, and more
importantly to define it as a condition arising from the contract of marriage,
the writer performs an etymological analysis of two key words of the verse which
are taken as Koranic evidence for men’s superiority and women as their wards:
fadl, to excel, and qawwam, to maintain. He starts by reviewing the usage of
each word in other verses to establish that fadl does not denote a
natural/intrinsic advantage but an achieved/earned one, which in most cases
relates to material and welfare matters. He then deliberates on the meaning of
fadl, which, as he has it, is a kind of ‘excess from equilibrant’ which can have
either a positive or a negative sense. In a positive sense - referred to as
fadl-i mamduh - it can be one of the following three: a) fadl by variety, jins,
such as superiority of animal kind over plant kind; or b) fadl by species, nou’,
such as superiority of human species over horse species; and c) fadl by essence,
zat, such as advantage of one person over another which is commonly measured by
some determined criteria, such as wealth.

“Therefore, men’s fadl to women is
the superiority of one person over another among the equal species of human, and
in the honoured verse, man in his capacity of being married and managing the
family has an advantage, not that all men are superior to all
women.”

The same
goes for qawwam, which speaks of a convention, a custom, a contract according to
which men voluntarily undertake to run the affairs of the family. This in no
sense signifies that they are superior, but merely that they protect and
maintain their wives.

“Seen from
this perspective, the verse is indeed not about men’s dominion over and
guardianship of women but is about married women, who are to fulfil their share
of duties in the family.”

The two verses are subjected to the
same treatment. As regards verse 228 of Baqara - which is again taken as
evidence of men’s superiority, as it says men are a degree higher than women -
Azadi argues that, given the entire text of the verse, this supremacy again has
to do with men’s and women’s different marital rights and duties.[18]

“Difference in
rights and duties, which is both relative and a matter of convention, cannot be
taken as men’s intrinsic (natural) superiority over women. Both are human, thus
equal.”

As regards
Verse 33 of Ahzab, which is invoked by those who disapprove of women’s work
outside the home because in it they are enjoined to stay home and not to display
their ornaments, Azadi has the following to offer.[19] First, as the preceding verse (32)
reveals, it is addressed to women of the Prophet’s household, thus it is not
incumbent on all Muslim women, who certainly are not on the same level.
Secondly, even if it were addressed to all women, its command, hukm, is a
guiding, irshadi, not a binding, ilzami, one. On this all jurist agree, in his
words: “We have not yet heard a single faqih decree as a binding and obligatory
command of God that women be house-bound.”

He concludes his discussion of the
Koranic verses by reiterating that the three verses in no way oppose women’s
right to serve as judges; and that they are but a pretext for those whose real
intention is to keep women in a state of depravity, restrict the scope of their
activities, and in short confine them to the home.

Having dealt with the Koranic
verses, the Zanan writer turns his attention to the Traditions that opponents of
women judges invoke in support of their position. He finds these to be of three
kinds. First, those sayings, rawayatt, in which there is a specific ban on women
from assuming certain offices, such as a judge or public prayer leader.
Secondly, those from which a ban can be inferred because of the repercussions on
women’s work outside home, such as the preference, istihab, for their
segregation, or the abhorrence, ikrah, of their presence in Friday prayers.
Thirdly, those traditions that the author classifies as dealing with general
themes and banning women as a result of their own internal logic. He starts with
the first kind and focuses on three sayings. The first is a saying by Imam Baqer
(the fifth Shi’a Imam), who is reputed to have said “do not leave judgment to
women.” The second is the Prophet’s last will addressed to ‘Ali, in which, among
a long list of prohibitions placed on ” women, two are “women are not to be in
charge of the task of judging, and they are not to be consulted.” The third is
the wilayat hadith whereby the Prophet said that “the people, the wilayat
(running) of whose affairs is entrusted to a woman, will not be
saved.”

To set the
record straight, and more importantly to show why and how these three sayings do
not constitute a ban on women’s right to serve as judges, the writer puts
forward altogether 20 arguments, 13 relating to the first two sayings, and seven
relating to the third one. These arguments are varied: some are rooted in fiqh,
others in linguistics, sociology, logic, reason and common sense. They range
from discussing their chain of transmitters to etymological and logical
arguments, with the aim of placing them in context by drawing attention to the
fact that each pertains to a specific set of events and reflects the dictates of
its time, which is not necessarily the same as ours. For instance, as to the
third hadith, in a long passage he argues that the Prophet was specifically
referring to events in Persia, where a female monarch had just assumed the
throne. The hadith is a political commentary on the affairs of Sassanid Persia,
where in the course of four years twelve monarchs had been enthroned.[20]

“It reveals an
external fact about the Persians, that this time too the Sassanid throne cannot
be saved, not that if women rule, people will not be saved in akhirat (the last
day).

Suppose in a
given society, all men are afflicted with the disease of feeble-mindedness, and
there is one wise and learned woman, in that case is her wilayat still invalid?
What happens if we assign this wilayat to imbecile men?! Or let’s suppose that
in other planets, women are stronger and more learned than men, do we accept
their custom or do we reject it totally?”

In the next number (Zanan 5,
June-July 1992) the writer turns his attention to ijma’ (consensus of jurists on
an issue). He starts the discussion by defining the nature, scope and function
of ijma’ in Shi’a fiqh, clarifying its place in the process of ijtihad. The gist
of his argument is as follows. Ijma’, strictly speaking, is the act of gathering
the opinions of Islamic scholars and jurists on a certain issue, and on its own
is not a source of law but merely a tool in deriving a law from the primary
sources. In practice, since there is no requirement as to the minimum number of
these opinions, it has become customary to claim that ijma’ has been achieved
for some legal rulings whose essence is not strictly in line with the primary
sources. There are two kinds of ijma’: ijma’-imuhassil (obtained consensus),
whereby one needs to collect the views of contemporary jurists on an issue; and
ijma’i manqul (narrated ijma’), whereby a faqih or mujtahed, in support of his
own opinion, makes a claim of other jurists’ consensus, without any thorough
research. Since obtaining the first type of ijma’ is difficult, and even
impossible, whenever jurists invoke ijma’, they are talking of the second type.
In that case its function is that of affirming the sunna and has little validity
on its own, otherwise the jurists’ opinion could replace the Book and the
Tradition.

With this
background, Azadi concludes that, with regard to maleness as a prerequisite for
judgment, there is no ijma’ of the first kind; and he then lists arguments that
some jurists have put forward that the ijma’ (which is of course the second
kind, manqul) requires a judge to be of male sex. He points out that the whole
issue of maleness as prerequisite for judgment is in fact a Sunni debate which
entered Shi’a fiqh in the sixth century hijri under the influence of Shaikh
Tusi, mainly in order to gain acceptability and avoid further criticism by his
Sunni counterparts.

In the last
part of the discussion, which is entitled “Women’s Judgment from the Perspective
of Reason”, Azadi notes:

“Probing the reasons put forward by
those Islamic jurists who deny women the right to be a judge, proves that their
offensive on woman focuses on her incapacity and inability. It is the question
of women’s gender shortcomings and men’s natural superiority. They regard men as
powerful beings and women as weak and worthless. It is of course evident to us
that such perceptions arise from centuries of confinement, living behind closed
doors, in inner quarters, andarun, of homes separated from the society...
Nevertheless, to prove women’s inadequacy they have brought up other
arguments.”

He then
discusses three arguments that are put forward by jurists in support of the
doctrine that women are innately flawed. First, there has never been a woman
prophet or Imam, which proves that God has not entrusted women with the task of
judging men. Secondly, the primary postulate is that of everyone’s ‘adam-i
wilayat, i.e. that no has the right of wilayat (authority or jurisdiction) over
anyone else; therefore, those who oppose this postulate must provide convincing
evidence. Thirdly, women are defective in nature and thus cannot be entrusted
with tasks such as wilayat or judgment.

The way Azadi tackles each of these
sets of reasoning is both skilful and provocative, laying bare their circular
nature, inner contradictions and misogynous roots. For instance, as to the
first, he states:

“1) It is
obvious that not having become a prophet or Imam is different from not being
able to become one; we learned in philosophy and logic, not finding something
does not prove that it does not exist.

2) That women have not taken the
mantle of prophethood - which requires intense social activity - cannot be taken
as an evidence for women’s depravity so as to deny them other offices. This
(women not becoming prophets) did not happen for numerous factors that the
Divine Law- Maker willed.

3) That women have not been
appointed as prophets is after all a report; perhaps there were women prophets
whose missions were denied by men.

4) According to the explicit text of
the Koran, revelation, which is one of the attributes of prophecy, was received
by women, such as the mother of Moses, and particularly Mary mother of
Jesus.”

As to the
second set of arguments, the ‘adam-i wilayat postulate, Azadi states that if we
are to take this postulate literally then no one, including men, can judge or
rule, thus there can be no rule or government. He then expresses a view that
goes against the very grain of establishment clerical opinion:

“The Divine Law-Maker (Shar’-i
Islam) has left ordinary affairs to people themselves and only guides them in
this respect; whether people are going to vote for this or that person is
something which belongs to the realm of the ordinary; religion is neither for or
against it, unless the actions of the voters or candidates contradict a
principle of the faith.”

As to the third argument, women’s
defectiveness (naqs), he focuses on Imam ‘Ali’s Sermon (khutbeh) 79 in Nahj
al-Balaqeh,[21] in which the Imam registers women’s
deficiencies in clear and strong terms, leaving no room for modification.[22] Here Azadi is clearly at pains to
qualify the Imam’s saying, or cast doubts on its authenticity; what he does is
to place the khutbeh in context and argue that one cannot generalize from it. It
was delivered soon after the battle of the Camel and it specifically addresses
‘Ayisha’s ill judgment and action, not all women. Finally, he turns to tackle
those who argue that because of their delicate and emotional nature, women are
incapable of correct judgment.

“Rather than criticizing women, they
are willy-nilly implicating the Creator, and if they believe that there is no
defect in the Creation, then they cannot claim that women’s emotionality makes
them defective, and if they believe otherwise, then we need to enter a
discussion on the fundamentals (usul) with them; their views on women are
attributable to other belief systems than Islam and knowledge of
God.”

He ends the
whole discussion on women and judgment by going back to the Koran, and cites
verse 13 of Hujurat,[23] to prove that men and women are equal
in the eyes of God; what invests either with privilege is their action; and
verses 21 to 42 of Sura Naml, to prove the wise judgment and good rule of a
woman through the Koranic account of the encounter between Solomon and the Queen
of Sheba.[24]

In the next
three Numbers (Zanan 6-8, which appeared between July and December 1992), Azadi
turns his attention to two themes: women as arbitrators in family courts and as
religious leaders (marja’). Given the subject matter of the preceding articles,
his first theme seems repetitious, if not incongruous. But as his argument
progresses it becomes evident that they are an implicit critique of the
post-revolutionary divorce laws and the Majlis debates concerning the disputed
divorce amendments which were rejected by the Council of Guardians. In these
articles, Azadi offers an extended commentary on Verse 35 of Nisa, which
recommends that if separation between spouses is feared, an arbiter from each
side should be appointed to deal with the dispute. This verse became the basis
for the establishment of Shari’a courts in 1979 to replace the Family Protection
Courts as well as the first modification in Shari’a divorce provisions effected
in the Islamic Republic.[25] Azadi first takes issue with “some of
the graduates of Houzeh” (centres of religious learning in Qom) who contend that
the Verse is addressed to the judge and, thus, “it is up to him to choose to
settle the dispute by appointing the arbiters.” Before offering his own view,
Azadi discusses diverse commentaries on this verse, and then concludes
that, “the choice of the arbiters must be left to the disputing
couple; it is allowed, even preferable, that one of them should be a woman; they
should be empowered to settle the dispute by bringing about either a
reconciliation or a negotiated divorce.”[26]

In the second
part, he discusses the limits to the powers of arbiters as understood from the
above verse. He then turns to an examination of arbitration in the modern legal
systems of three Muslim countries: Iran, Iraq and Lebanon. He uses the occasion
to point out that apart from two minor details, the provisions of the dismantled
Family Protection Law correspond with the Shari’a mandates, and its dismantling
has resulted in a number of problems which need urgent attention.[27]

In his last
contributions, entitled Women’s Ijtihad and Marji’at, Azadi follows his usual
format and grounds the question in sacred texts and rational debates. However,
both the thrust of his argument and the tone of his writings are more forceful
and less implicit. He draws a clearer line between primary (the Koran and sunna)
and secondary (fiqh texts) sources of Islamic law. He then points out that there
is no evidence in the primary sources to support the contention of the secondary
sources which bans women from issuing decrees and becoming religious leaders.
According to him, the secondary sources reflect views and conceptions of Muslim
thinkers not Islam. They should not be accepted at face value and need to be
questioned in the light of the primordial principles inherent in the primary
sources. In refuting the views of some Muslim thinkers, Azadi takes his
arguments, refined in the course of the last four issues, to their logical
conclusion and calls for and absolute gender equality in all spheres of the
Shari’a. This is done under the heading of ‘Rational Principles’ (Usul-i
‘Uqala’i), in which he elaborates on six principles amounting to a declaration
of a Shari’a-based bill of rights for women. All entail equal rights in 1)
pursuing education, 2) choosing an occupation, 3) administering justice, 4)
attaining spiritual perfection, 5) receiving rewards and punishments, and
finally 6) developing a healthy society and fulfilling other social and human
needs.[28]

Debating the Sacred and the Legal: a Challenging Voice

A year after its launch, in a review
of Ayatollah Javadi Amoli’s book Women in the Looking Glass of Majesty and
Beauty, Zanan starts to take issue with the official Shi’a discourse on women.[29] The book is important not only
because it is the first substantial publication on women since the Revolution by
an eminent Ayatollah, but it also encapsulates the latest, state-of-the-art,
official Shi’a discourse on women produced under the Islamic Republic, as
evidenced in three ventures in which the book is rooted.[30] The first is a course of lectures
that Ayatollah Amoli delivered in Qom in 1989-90 to female students of the
Al-Zahra seminary. These students, who were all at the advanced level of
religious studies, also helped in “elucidating certain ambivalence of fiqh texts
and Koranic commentaries.” The second is a seminar organized by the Iranian
National Radio and Television in which Amoli prepared a special text to fit the
seminar’s theme, “The high status of women in Islam, protecting their honour by
amicable means in the society, and combating the Western cultural invasion.” The
third is a set of “scientific questions with regard to specific Koranic
exegesis”, asked by the director of the Centre for Women’s Studies.[31]

Ayatollah
Amoli’s stance on gender is the same as that taken by Ayatollah Motahhari three
decades earlier, although his mode of argumentation is different. While
concurring with Motahhari’s theses of the complementarity of gender rights and
duties, Amoli places the whole issue of gender inequalities in the Shari’a on a
spiritual plane, justifying them through a series of mystical inferences. In so
doing, he aims to relegate gender disparity in the Shari’a to the mundane
material realm and refers the reader to the spiritual realm, where the real
destinies of men and women lie. For instance, as far as family matters are
concerned, he writes that “the endurance of hardship (for women) might on the
surface appear an evil (sharr) but its immense goodness (khair) is to strengthen
the family and protect its essence.”[32]The book’s title, on which Amoli
dwells at length in the introduction, aims to underline the eternal duality in
the mundane and spiritual destinies of men and women. In Amoli’s
words:

“In short a
woman must offer the subtleties of wisdom (zara’if-i hikmat) in the subtleties
of art (zar’if-i honar) and man must display subtleties of art in subtleties of
wisdom, that is to say that a woman’s majesty (jalal) is hidden in her beauty
(jamal) and a man’s beauty is reflected in his majesty and this division of
labour is neither a blame for women nor a praise for men. But it is the
guide-line for each, each (sex) is assigned to its proper tasks and deserves
praise for compliance with this order, and blame for defiance.”[33]

Zanan’s review,
entitled “Women in the Perspective of Reason and Perfection,” marks the
beginning of a new phase in Shari’a-based discourse in post-revolutionary Iran.
Its author, Mohsen Sa’idzadeh, is a cleric trained in Qom whose position is very
different from Amoli’s.[34] Drawing upon arguments developed in
previous Numbers, Sa’idzadeh rejects the very premise of Amoli’s arguments and
denounces the notion of ‘complementarity of rights’ - developed by Motahhari and
on which Amoli’s arguments rest - as a pretext to deny women their Islamic
rights. In a set of inter-connected arguments, Sa’idzadeh contends that
Islam grants the women the same rights as men in all matters,
including the right to become leaders (both religious and political) and to
serve as judges. Islam regards the material and the spiritual as two sides of
the same coin, and it is sheer folly to expect that we can continue to subjugate
women in this material world through an illusory promise of spiritual reward.
The following extracts give an idea of the nature and force of his arguments,
which are both challenging and novel.

“Money is the root of all good as
much as it can be the root of absolute corruption. If a woman were an
(economically) independent legal person (in marriage) and did not have to depend
on her husband for nafaqa (maintenance), she would not put up with the indignity
of an unjust tamkin (obedience) and a thousand and one other hardships; this is
what frightens men. If humanity ruled, irrespective of being wealthy or not, a
woman would be her husband’s partner and aide. Did Khadija not spend her large
wealth for the Prophet? Was she not wealthy and powerful? Why did she follow him
and remain loyal to him?

It is time to ameliorate men’s level
of awareness in society, to make them understand that the criterion for good
conjugal relations is no longer domination, paying for women’s maintenance and
ruling them, but the reason for a woman obeying a man is his humanity. Indeed we
do not have any strata in this country more oppressed and sacrificing than
women.

It is not
evident why, instead of being realistic, some of our religious leaders resort to
fanciful, and sometimes distorted, justifications and interpretations. Why do
they not want to accept women’s God-given and intrinsic demands, which are in no
way threatening to society. Why in the sphere of Islamic law, which claims
universal application, should these matters be missing?

We believe that the problem is not
with Islam but with Islamic thinkers’ understanding of Islam, which is tinted
with political and patriarchal notions. Why, as soon as an enlightened mujtahid
or an aware Islamic scholar tries to correct these, is he faced with all sorts
of accusations? If our logic is strong then we should not be frightened and if
it is weak we should find ways to remedy it.”[35]

With two gaps,
the legal sections of the next five Numbers (Zanan 11- 16, which appeared
between June 1993 and February 1994) extend the debate to an examination of the
gender basis of current penal laws. The debate started with Zanan’s publication
of an article by a secular women lawyer, Mehrangiz Kar, delivered at the ‘First
Seminar of Women’s Social Participation’. The seminar, organized by the Tehran
Governor’s Office, was part of an official campaign to promote women’ s status
in society by highlighting their ‘’high status’’ in Islam. Kar’s paper is a
factual analysis of the gendered basis of the Islamic Punishment Law as codified
in 1991, in which she merely lists - without one single comment - the instances
in which men and women receive different punishments for the same
crime.

Zanan’s
decision to publish a paper by a secular feminist, whose primary assumption is
that ‘gender equality even in punishment’ is a principle to which the legislator
should adhere, marks another phase in the development of Zanan’s stance. Zanan’s
willingness to join forces with secular feminists to protest against the gender
biases of a law which is derived from the Shari’a is indeed novel in
post-revolutionary politics. Capitalizing on recent pro-women slogans, Zanan
introduces Kar’s article with an explicit call for ijtihad:

“In recent years Iranian women have
been subjected to especial praise and honours, naturally raising their
expectations. They now expect the thinkers and policy-makers to re-examine the
inequalities that exist in penal laws of the country and prescribe a fundamental
revision. In other words: ‘It is time for ijtihad’.”[36]

To defuse an
eventual riposte, the introductory passage to Kar’s paper contains two other
points: first, that: “Islam is a collection of Koranic Verses, sunna and
opinions of the Islamic jurists, and we know that jurists differed in their
perspectives and opinions. Some refute others, and it is exactly here that we
can be hopeful for progressive ijtihads.”

Secondly, that when the author
refers to ‘legislator’, qanungozar, she means ‘law-making authorities and
apparatus of the country’, not the Divine-Law-Maker’, Shar’i-e-Islam. This
distinction is also made in the title of Kar’s article: “The Position of Women
in Penal Laws of Iran”.

Zanan continues the debate, but this
time from the fiqh perspective. This is done in a three-part article entitled
“Position of Women in Penal Laws of Islam”, written under the name of Zinat al-
Sadat Kermanshahi. The approach and the style of argumentation in these articles
are exactly the same as in those written by Azadi. However they have a stronger
tone and the arguments are further refined, giving them a more forceful thrust.
Before starting the discussion, the author carves out a framework with two
objectives: to ground and contain the discussion within the fiqh tradition with
the aim of pre-empting any charge of heresy; and to promote Shari’a-based
arguments for reforming the present penal laws which are themselves based on the
Shari’a. To expand the scope of debate as developed in earlier issues of Zanan,
and to free the author from previous constraints, five points are stressed at
the outset. These are:

“1) In arguing for gender
equality in the penal laws of Islam we start with the postulate of takafu
(equality) in religion, then we proceed to examine the postulates of gender,
freedom and slavery - all within the fiqh framework.

2) After the Prophet’s death, the
need for new laws and reinterpretations of the old ones gave rise to the
emergence of various schools of law and thought whose founders used their own
judgments in an endeavour to find solutions for legal problems. Thus their views
and deductions cannot unequivocally be attributed to Islam, as they are the
views and commands of Muslims not Islam.

3) It is evident from the arguments
and views of Islamic jurists, hadith experts, and commentators that the penal
laws of Islam are more satisfactory (imza’i) than foundationary (ta’sisi); and
that Islam largely accepted past customs and introduced certain modifications,
including the removal of discrimination. Thus well versed in the rules of fiqh
and usul, the present writer does not find it necessary to confine him/herself
to current idioms.

4) The
requirements of the age, of place and politics have undeniably shaped Islamic
laws, fiqh and its commands, as confirmed by a number of hadith. Therefore, a
review of these laws does not diminish their value and sanctity but enhances
their power. The ‘Divine Law-Maker of Islam’ had foreseen and allowed for such
changes.

5) This
article is a critique to assist the legislator (qanungozar) in reforming (penal)
laws; its aim is neither to be a decree (fatwa) nor to innovate (ibda’).”[37]

Within this
framework, the author proceeds to examine the place of gender in Shari’a penal
laws under five headings: retribution in case of murder, qissas-i nafs,
retribution in case of the loss a bodily organ, qissas-i‘uzw, money compensation
paid in lieu of qissas (diya), fixed punishment, hudud, and punishment defined
by the Islamic judge, ta’zirat. For each of these forms of punishment, the
author scrutinizes the diverse opinions of the jurists and divides them into
three groups: advocates of the ‘theory of difference’, who maintain that men and
women should be subjected to different punishments for committing the same
crime; proponents of the ‘theory of equality’, who hold that men and women
should receive the same punishment for committing the same crime; and supporters
of the ‘theory of inequality’, who argue that a man should not be subjected to
qissas for murdering a woman.

These articles are interrupted in
Zanan 14 (Oct-Sept 1993) by a harsh critique of Kar’s paper, to which Zanan duly
replies in the same Number. The critique, apparently written by a
seminary-educated woman, Muzhgan Kiyani Sabet,[38] is in fact a pretext to rebut the
earlier articles in the legal sections of Zanan, written by Azadi. However, its
author chooses to single out Kar’s article as the culprit. This is so not only
because Kar, as a secular feminist, is a safer target to attack, but also
because the author probably found it difficult to challenge Azadi’s articles
which are all argued within acceptable fiqh boundaries. The critique, and
Zanan’s reply, written by Sa’idzadeh, encapsulate the conflict between Zanan and
those who see gender differences in the Shari’a as reflecting the divine design
for mankind. Lack of space does not allow a full treatment, here I can give only
an intimation.[39]

Following the
style set by Zanan, ‘Kiyani Sabet’ starts her critique with an introductory
section, establishing the framework and the position taken. This section makes
seven points, whose primary aims seem to be twofold: to close the debate on
gender inequality in the Shari’a, and to reaffirm the official Shi’a position.
These are conveyed in a set of seven arguments in which the author contends that
1) as penal laws in Iran are now derived from the Shari’a, any discussion of
them involves the Shari’a, i.e. the sacred; 2) to object to them is to object to
the Shari’a, which is not permissible as the believer is required to follow the
Shari’a provisions without any probing. The following four arguments simply
reiterate that Islamic law is divinely ordained, based on the laws of nature;
women are treated differently because their natures are different and this is
indeed the very essence of justice. Here the author simply produces the
arguments put forward by Ayatollah Motahhari and more recently by Amoli, quoting
from their books. The final argument is theological, whereby the author states
that, “prior to entering a discussion of fiqh one needs to enter a discussion on
fundamental and doctrinal issues of Islam,” which is followed by a discussion of
two of the fundamentals of religion, usul-i din: Unity of Attributes, Towhid-i
Sefati, and Divine Justice, ‘Adl-i Elahi.[40]

Zanan’s reply,
entitled “But Our Response”, which is written by Sa’idzadeh, is not only daring
and erudite but carves out another space for Zanan’s position within the
fiqh-grounded debates. Saidadeh ‘tackles the critique on its own terms, responds
to each of its arguments within the fiqh context, shows how its author commits
the very sin that s/he forbids others, and points out the instances in which the
author deviates from the fiqh and the fundamentals of the religion by issuing a
number of groundless fatwas. In so doing, Zanan highlights the ways in which the
critique misunderstood and misrepresented fiqh fundamentals, the Iranian legal
system, and Kar’s article, laying bare its implicit gender biases.[41]

Debating the Legal
and Moral: an Emerging Feminist Voice

Zanan 18 (June-July 1994) marks
another important phase in its progression towards a Shari’a-based feminist
discourse. Here Zanan questions the classic divide in Shari’a marriage rules
between the moral and the legal and holds it responsible for the injustices in
marriage to which women have been subjected. This is done in two ways. First,
Zanan takes issue with assertions made about nafaqa (maintenance) by the head of
the judiciary, Ayatollah Yazdi. Reflecting the dominant opinion within the Shi’a
fiqh, Ayatollah Yazdi, in a Friday Prayer sermon (June 3rd) said that, legally
speaking, the wife’s right to maintenance does not include the expenses of major
medical treatments.[42] Zanan’s critique of the Ayatollah’s
position, again written by Sa’idzadeh, took the form of an extended article,
entitled: “According to What Law is a Husband Not Responsible for his Wife’s
Major Medical Expenses?” The Ayatollah felt compelled to reply to these
challenges not merely to his credentials as an advocate of justice, but to his
competence as a jurist/scholar.[43] Secondly, Zanan adopts a different
approach in discussing issues which were examined in the first two Numbers, such
as the wife’s obedience and the husband’s right to headship of the household,
dealing now with the sociological, legal and fiqh aspects separately, and
highlighting their inter-connections.

The sociological aspects are
examined in a section labelled ‘Report’, which like the ‘Legal’ is a feature in
most Numbers. In Number 18, the ‘Report’ is devoted to women’s actual
experiences of marital violence, under the title: “Sir, Have You Ever Beaten
Your Wife?” It consists of a number of interviews with men, women and children
from different walks of life, seemingly innocent, but sharply pointed.
These interviews reveal the extent to which women are at the mercy of their
husbands, who see it as within their right to beat them if they object to or
ignore their demands. In other words, the Report shows what the Shari’a concepts
such as tamkin and nushuz entail in practice, and how humiliating and disturbing
is their impact on women and the children.

The ‘Report’ is followed by an
interview with a female lawyer (Mehrangiz Kar), discussing the legal rights of a
wife who is trapped in a violent marriage. Only in case of extreme physical
violence can a woman have recourse to law, either to claim compensation or to
obtain a divorce. But since the concept of ‘maltreatment’ (of a wife) is not
clearly defined by the Civil Code articles, the outcome of many cases depends on
the outlook of the judges, who are all male and trained in Islamic law. Some
consider that a man has right to punish his wife, while others consider beating
as a violation of her rights. The whole legal procedure is complex and a woman
must provide medical reports or bring witnesses in support of her claim,
and only those whose injuries are severe, such as loss of a limb, can get any
kind of compensation. Since this is not always the case, women often end up
giving consent to abandon the case against their husbands.[44]

The fiqh
dimensions are discussed in a two-part article (Zanan 18-19, June-September
1994), under the title: “Wife-beating: Another Consequence of Men’s Headship”.
In contrast with the first two Numbers, Zanan not only now engages with fiqh
texts but tackles Koranic verses which are commonly used to legitimate women’s
subordination. The author of this article is a man well versed in sacred
traditions, although he uses the name Mohsen Qa’eni, he is rumoured to be the
same cleric who has contributed many earlier articles. Like the contributors to
Numbers 1 and 2, he starts the discussion with Article 1105 of the Civil Code
and Verse 34 of Sura Nisa, but unlike them he sets out to prove that Article
1105 has no Shari’a justification, and that its content cannot be attributed to
the divine Law-Maker of Islam. He challenges dominant interpretations of the
above verse and the underlying assumptions behind them before offering his own
reading, which reflects Zanan’s position: that men’s headship of the household
is a male construct, and, like other male privileges which are attributed to
Shari’a laws, actually has its roots in the culture and customs of the time of
revelation. In these sections, the author introduces a number of ingenious ideas
and opens the way for a feminist reading of some of the Koranic verses. To
understand how this is done, we should take a closer look at these two
articles.

After a
lengthy critique of the prevailing conceptions of marriage and marital relations
in the works of Islamic jurists, Mohsen Qa’eni asserts that, in the sphere of
the family as elsewhere, the Koran’s aim was to introduce change gradually. For
instance, at the time when women had no inheritance rights, the Koran entitled
them to half the share of a man; had the economic and social conditions been
favourable, most probably they would have been given equal shares then and
there. The absolute authority of men, and the maltreatment of women, were among
the customs of Arabs; the Koran, however, modified them to a large extent. For
instance, the wealthier or more powerful a man, the more wives he took; what the
Koran did was to limit the number to four and make women a party to the
contract; if the situation had arisen, it would have limited the number to one,
as there is a clear indication of this in several places in the Koran
itself.

To show the
extent to which Verse 34 of Sura Nisa is predicated on the customs and
conventions of its time, Qa’eni urges the reader to follow the practice of the
Prophet, reminding the believer that s/he is required to do so by the Koran
itself. He then goes through 15 Traditions to argue that the Prophet himself
never acted according to the dictates of the Verse: not only did he never raise
his hand to strike any of his wives, but he condemned wife-beating. However, he
tolerated it as it was a part of the patriarchal culture of the time, which he
intended to abolish gradually through reforms. To separate the ideas and views
of Islamic thinkers further from those of the Prophet, the author makes six
logical deductions, the gist of which is as follows.

“1) Islam intends to resolve
disputes primarily through persuasion, mou’izah, and advice, nasihat, and by
logical means, then through indirect means, such as avoidance, qahr, and it is
only after these that out of necessity a warning or a threat is issued. The same
holds true for marital disputes: the permission, ibaheh, to beat is merely a
gesture, a caution, aiming to create awe. Seen from this perspective, Islam
empowers both spouses to prevent each other from straying from the correct path
of marital life. Each (sex) may resort to different measures.

2) To improve social relations,
Islam has endorsed some of the existing rules - and probably added some, that is
to say that, since certain customs and beliefs were so deep-rooted among Arabs,
Islam did not see it expedient to fight them overtly. Among them were beating of
wives and talaq, but the fact is that Islam abhors men who beat their wives or
divorce them at will.

3) In Islam,
‘command’, amr, has different functions - depending on the context. Whenever a
command is inferred from the Koran, compliance is not required. For instance,
Verse 3 of Nisa, cannot be taken as commanding men to take four wives.[45]

4) According to
the view of some commentators, beating is to be resorted to only in case of the
husband’s inability to achieve the desired result in a conciliatory manner, i.e.
in case of extreme duress, iztirar. Evidently, any iztirar is blameworthy,
makruh, the preferred command of Islam for a man is to establish a loving
relationship with his wife and not to hurt her. Those who take this verse at its
face value and criticize the Koran for sanctioning wife-beating either have
other motives or lack knowledge of its essence.

5) Positively, the content of the
verse is a report on the people of that age. To extend its relevance to all
times, we need other proofs, dalil. One issue in theoretical bases of Islamic
law, usul al-fiqh, is the question of the extent to which Koranic commands can
be extended validly to those who were not its face-to-face addressees, gheyr-i
mushafihan. According to the perspective of the non-extension, ‘adam-i shumul,
it is up to those who hold that the Koran sanctions the beating of a wife to
provide proofs that the command extends to people of all ages. The same is true
of those verses which were used to legitimate men’s dominance over women. The
Koran states that men have a privilege over women, which is that granted to them
as their maintainers, but it does not say whether this (being their maintainers)
is good or bad. The rest of the verse merely states that “good women are
obedient” but does not tell them to be obedient. If the Koran wanted them to be
obedient, it would have said so directly. Why has it not ordered them to be so,
as in other instances when men and women are ordered to obey God and his
Prophet, and to do their prayers five times a day and to fast during the
Ramadan? This means that the Koran simply endorsed the conduct and custom of the
time - as it did with other marriage rules - but it does not mean that the Koran
held them as just and unchangeable.

6) If we accept the view of some of
Islamic jurisprudence, Ulama-yi ‘ilm-iusul, a Koranic command can be revoked,
naskh, by means of visible proofs. In the case of the above verse we are facing
a kind of naskh. The order to strike, darba in its conventional interpretation
is removed because of the interest of the situation, maslahat-i waz’, of wisdom,
hikmat, and of other interests. In light of the traditions, ahadith, discussed
above - transmitted by both Sunnis and Shi’as - and given other principles of
the Koran and Sunna which oppose any kind of aggression and seek to promote
peace and harmony in all matters, the revocation, naskh, of the word daraba (in
its conventional meaning) is then certain.”[46]

Having put
forward the above logical reasoning, the author then surveys the fiqh literature
to show the diversity of jurists’ opinions on the subject. A minority, who share
the author’s point of view, hold that men are not permitted to beat their wives
under any condition. The majority, who think otherwise, are divided into two
groups: those who consider this treatment applicable to all women; and those who
make a distinction according to the wife’s status, which suggests that the
command has always had its social side. In subtle ways the discussion reveals
the complexity and yet the absurdity of the whole issue, especially in the
modern legal context when the wife can successfully challenge any charge of
disobedience. It is argued that beating a wife has no religious legitimacy and
is a matter that the legal system must deal with. Men who beat their wives must
be brought to justice.

Finally, in
Zanan 19, the writer goes back to the verse and offers an alternative
interpretation, which is indeed novel. Under the title “But Our Stand-point”,
Qa’eni argues that, first, we need to understand the real sense of the verse,
and its underlying message. The verse, more than telling men how to punish their
wives, tells them how to understand the psychology of women and the reasons for
their disobeying. It is indeed about marital disharmony and how a man should
respond if he fears that his wife might enter the state of nushuz. There are
many underlying reasons for nushuz (itself a vague term, which can mean
rebellion in general or denial of sexual access in particular). As some
commentators remark, some women become ‘rebellious’ in order to seek further
attention, some want to test their husband’s love, and there are many other
reasons. Qa’eni then examines the root radicals for three key words in the
verse: wa’aza, to exhort, hajara, to abandon, and daraba, to strike. He argues
that, in the verse concerned, the first word enjoins the husband to reason with
her, the second to give her space, and the third to strike her with fondness. To
arrive at this, the author engages in a linguistic analysis whose gist is that
in the Koran the word daraba has different senses whose meaning becomes clear in
association with others (it means ‘striking with awareness’ in verses 75 and 76
of Nahl, ‘travel’ and ‘speed in flight’ in verse 156 of ‘Umran, etc.). “Whenever
daraba is used in the sense of beating it is in association with another word,
for example in verse 27 of Mohammad and verse 44 of Suad.” This is not the case
in verse 34 of Sura Nisa where, he argues, “daraba when
read in bab al-af’al, and when taken is association with wa’aza, no longer
denotes beating. Therefore, the meaning of the verse could be that ‘disobedient’
women are of three kinds: those who need to be reasoned with; those who need to
be left alone for a while; and those who need to be caressed, and taken to bed,
rather than abandoned.”[47]

Conclusion

In the course of 19 Numbers, the
legal sections of Zanan have not only refined a mode of argumentation but taken
it to its logical conclusion by using it to tackle some hoary issues in the
Shari’a. As is evident, the approach is that of fiqh texts: first, by reviewing
the divergent positions of the Muslim jurists, the issue is introduced and
placed in context; then diverse opinions of the jurists are scrutinized in the
light of the Koran, hadith, ijma’, reason and the practice of their time;
finally, those which are contrary to the writer/s’ position are refuted and
those which are not are elaborated. Among the juristic and logical devices that
Zanan’s writer/s use/s, the following can be singled out: distinctions between
the divine Law-Giver (Shar’-i Islam) and the mundane law-maker (the Islamic
Republic), and between primary and secondary sources of Shari’a. While primary
sources are subjected to innovative interpretations, the secondary sources are
debated and at times refuted by the aid of the former. It is argued that time
and politics are among the decisive factors in upholding or modifying any
Shari’a rule, even if it is rooted in explicit Koranic injunctions, which are in
turn divided into two categories: ilzami (binding) and irshadi (guiding). At the
same time the classical divide in the fiqh rules between moral and legal is
challenged, and jurists are urged to give legal force to the former; finally
they are reminded that the time for radical ijtihad has come. In this way,
Zanan’s writer/s is/are gradually but surely turning the classical texts on
their head, using their own style of reasoning and argumentation.

The process is still unfolding; so
is our understanding of it. However, some tentative conclusions can be offered
at this stage.

Zanan’s
Shari’a discourse is not isolated, but is part and parcel of a new tendency
within the centre of the religio-political establishment. This tendency, which
can perhaps be best termed ‘post-fundamentalist’, represents the latest faction
in post-war and post-Khomeini Iran. It is changing the very terms of not only
the Shari’a discourse on women but that of the Islamic Republic, by arguing for
a kind of demarcation between state and religion. Ironically, its most outspoken
advocates were part of the early political leadership which defined the
Republic’s policy. This tendency has its intellectual core in Tehran, gathered
around Dr Abdul Karim Sorush, the guiding inspiration of the Kiyan Cultural
Institute, which publishes a monthly Kiyan - Zanan’s brother paper – in which
these views are aired.[48]

This tendency
advocates a brand of feminism which takes Islam, not the West, as its source of
legitimacy. What is significant about this ‘feminism’, and especially its line
of argument, is that it is grounded in a Shi’a discourse which is radically
different from the official one – still closely identified with the position
taken by Ayatollah Motahhari as part of the discourse of opposition to the
Shah’s reforms. Whereas Motahhari used Western scholarship to explain the
reasons and the necessity for the different treatment of women is Islam, the new
‘feminists’ use Shi’a scholarship to argue that old texts should be reread in
line with changed conditions. They take for granted gender equality on all
fronts, including the rights accorded by the Shari’a, unlike Motahhari, who
rationalized gender difference in terms of complementarity of rights. Again, in
contrast to Motahhari’s and other Shari’a-based discourses, the new tendency
sees women’s sexuality as defined and regulated by their familial and social
circumstances, not by nature and divine will. By diverting the focus of fiqh
away from women as sexual beings to women as social beings, the new discourse
has opened a door that can no longer be closed. It has given a new lease of life
to the old question of ‘Women in Islam’; and by asking suppressed questions, it
has brought about a shift in the very premises of the debate on women’s role at
home and in society. What made such a shift possible is the Islamic Republic’s
ideological understanding of Islam, which opens the way to challenging the
hegemony of the orthodox interpretative process.

Finally one should note parallels in
the emerging conditions of pre and post-revolutionary Shari’a-based discourses.
What gave rise to both were debates that preceded changes in family laws,
especially those pertaining to divorce. In both cases, a women’s magazine became
the forum for this debate: Zan-e Ruz in the pre-revolutionary era, and now
Zanan. Despite their differences, both discourses have provided an ‘Islamic’
alternative to the state-sponsored feminism of their time. What separates them
is that, while in the 1960s such an ‘Islamic’ alternative was defined in
opposition to the Shah’s gender policies, now it is defined in opposition to
those promoted by the Islamic Republic.

[1] I make a
distinction between the Sharia-based writings on women, whose writers are mostly
Muslim/Islamist men and with which I am concerned here, and the feminist
writings on Muslim women, whose writers are mostly Muslim/feminist women who
locate their feminism in Islam. For examples of the first type, see B.
Stowasser, “Women’s issues in Modern Islamic Thought,” in J.E. Tucker (ed), Arab
Women: Old Boundaries, New Frontiers (Bloomington: Indiana University Press,
1993); and for recent examples of the second, see L. Ahmed, Women and Gender in
Islam: The Roots of a Modern Debate (New Haven: Yale University Press, 1992), F.
Mernissi, Women and Islam: An Historical and Theological Enquiry (Oxford:
Blackwell, 1991).

[2] See Z.
Mir-Hosseini, “Divorce, Veiling and Feminism in Post-Khomeini Iran,” in H.
Afshar (ed), Women and Politics in the Third World (London: Routledge 1996).

[5] Both texts are
treated extensively in the literature on women in post-revolutionary Iran. For
example, A.K. Ferdows, “The Status and Rights of Women in Ithna ‘Ashari Shi’I
Islam,” in A. Fathi, (ed), Women and the Family in Iran (Leiden: E.J. Brill,
1985); M.K. Hermansen, “Fatimeh as a Role Model in the Works of Ali Shar’iati,”
in G. Nashat (ed.), Women and Revolution; G. Nashat, “Women in the Ideology of
the Islamic Republic,’ in G. Nashat, Women
and Revolution; S. Mahdavi, “The Position of Women in Shi’a Iran:
Views of the Ulama,” in E. Fernea (ed), Women and the Family in
the Middle East: New Voices of Change
(Austin: University of Texas Press, 1985); Tabari and Yeganeh, In the Shadow
of Islam; N. Yeganeh and N.R. Keddie, “Sexuality and Shi’i Social Protest in Iran,”
in Cole and Keddie, Shi’ism and Social Protest. With the exception of
the latter, the rest deal with the gender premises of both texts.

[6] For a
bibliographical sketch and a sample of his lectures in English, see A.
Shari’ati, On the Sociology of Islam, translated by H. Algar (Berkeley:
Mizan Press, 1979).

[7] A. Shari’ati,
Fatemeh Fatemeh ast (Tehran: Shabdiz Press, 1978), pp. i-ii. His other
text, based on another lecture The Expectation of the Present Era
from the Muslim Woman (Tehran: n.d.), expresses similar views.

[17] The verse
reads: “Men are the maintainers of women because Allah has made some of them to
excel others and because they spend out of their property; the good women are
therefore obedient, guarding the unseen as Allah has guarded; and (as to) those
on whose part you fear desertion, admonish them, and leave them alone in the
sleeping places and beat them; then if they obey you, do not seek a way against
them, surely Allah is High, Great.” This and other translations are taken from
Holy Qu’ran, translated by M.H.Sakir (Qom: Anasariyan Publications, n.d.), which
is distributed abroad by the Islamic republic.

[18] The verse
reads: “And the divorced women should keep themselves in waiting for three
courses, and it is not lawful for them that they should conceal what Allah has
created in their womb, if they believe in Allah and the last day; and their
husbands have a better right to take them back in the meanwhile if they wish for
reconciliation; and they have rights similar to those against them in a just
manner, and the men are a degree above them, and Allah is Mighty,
Wise.”

[19] The verse reads:
“And you stay in your houses and do not display your finery like the displaying
of the ignorance of yore; and keep up prayer, and pay the poor-rate, and obey
Allah and His Apostle. Allah only desires to keep away the uncleanness from you,
O people of the House! and to purify you a (thorough) purifying.

[21] Nahj
al-Balagheh is the most reputed collection of the sayings of ‘Ali, the first
Shi’a Imam.

[22] The khutba
reads: “O people, women are deficient in belief (imam), inheritance and wisdom.
Their deficiency in belief is due to not praying and fasting during menses;
their deficiency in wisdom is that witness of two women equals one man and in
inheritance is that their share is half of men’s. Therefore, avoid bad women and
beware good ones; do not follow their good advice and actions so as not to
encourage them to spread bad advice and actions (i.e. impel you to follow
them).”

[23] The verse reads: “We
have created you of a male and a female, and made you tribes and families that
you may know each other; surely the most honourable of you with Allah is the one
among you most careful (of his duty).”

[34] Sa’idzadeh is
believed to be the author of Zanan’s previous legal sections, writing under the
pseudonym ‘Azadi’. The fact that he chooses to use his own name when taking
issue with Amoli can be interpreted as an indication not only of his confidence,
due to the acceptability and erudition of his earlier contributions, but also of
the appeal of Zanan’s line of argument among some clerics. The debates among
these clerics, the issue of male authorship of Zanan’s legal articles, and the
use of female pseudonyms are among the topics that I discuss in a larger project
of which the present paper is a part.

[43] Zanan 19
(August-Sept 1994), 7-8. Ayatollah Yazdi starts his reply by expressing his
delight that among women there are those who are apparently capable of such
scientific and analytical discussion, but chooses on the one hand to ignore that
the critique of his own speech was written by a man (Sa’idzadeh), while
insinuating that the previous articles were written by men. This again raises
the issue of male authorship and the ways in which women’s issues have become a
main debating ground among male clerics.

[44] As my own study of
divorce cases shows, maltreatment is the most difficult ground to establish,
although it is the most commonly claimed, constituting 34 per cent of all cases.
For an extended discussion, see Mir-Hosseini, Marriage, 67-71.

[45] The verse
reads: “And if you fear that you cannot act equitably towards orphans, then
marry such women as seem good to you, two and three and four; but if you fear
that you will not do justice (between them), then (marry) only one or what your
right hands possess, this is more proper, that you may not deviate from the
right course.

[48] For a
journalist’s account of Sorush’s ideas, see R. Wright, “An Iranian Luther shakes
the foundations of Islam,” The Guardian, 1.2.1995. It is rumoured that this
tendency has a clerical core in Qom, of which little is reported.